IN THE CASE OF:
BOARD DATE: 29 March 2012
DOCKET NUMBER: AR20110019985
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests an upgrade of his general discharge to an honorable discharge.
2. The applicant states he was diagnosed as bipolar with unspecified paranoid schizophrenia by the Department of Veterans Affairs (VA) and he believes this is a factor in the altercations he had while in the service.
3. The applicant provides copies of his VA medical records and his General Discharge Certificate.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 14 October 1975 for a period of 3 years. He completed training and he was awarded military occupational specialty 13B (cannon crewman).
3. On 8 February 1977, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, was imposed against the applicant for disobeying a lawful order.
4. On 11 April 1977, court martial charges were preferred against him for violation of Article 128 of the UCMJ for assaulting another Soldier on or about 29 March 1977 by striking him with a dangerous weapon, to wit: a shovel.
5. On 12 April 1977, court martial charges were preferred against him for violation of Article 91 of the UCMJ for wrongfully communicating a threat to kill another Soldier on or about 29 March 1977.
6. On 21 April 1977, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the possible effects of a request for discharge, and of the procedures and rights available to him.
7. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.
8. In his request for discharge, he acknowledged that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person. He also indicated he understood that if his request were approved, he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He further acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. His request also stated he understood that once his resignation was submitted, it may be withdrawn, whether or not accepted, only with the consent of the commander exercising general court-martial jurisdiction over him.
9. He submitted a statement in which he indicated:
* he requested a discharge for the good of the service
* he had one Article 15, no courts-martial, and no absence without leave
* he joined the Army and thought he would become a good Soldier; however, he could not be a good Soldier because he did not like the Army and the way it worked
* the Army was a strain on his emotions
* he did not want to be in the Army
* he acknowledged he would lose his benefits and understood his discharge would be under other than honorable conditions and he accepted the discharge
10. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged for the good of the service in lieu of trial by court-martial on 8 June 1977 with a characterization of service of under other than honorable conditions. This form further shows he completed 1 year, 8 months, and 27 days of creditable active service.
11. There is no evidence that shows he was diagnosed with any mental condition prior to his discharge.
12. He provides medical documents from the VA, dated 1 April 2009, which state he was diagnosed with unspecified paranoid schizophrenia.
13. A document in his records shows that on 29 June 1979, the Army Discharge Review Board (ADRB) denied his petition for an upgrade of his discharge.
14. On 16 January 1980, the applicant submitted a request for a personal appearance hearing with the ADRB. His request was granted on 13 August 1980.
15. On 22 January 1981 the ADRB approved partial relief to his request and granted him a general discharge based on the fact that the applicant was properly but not equitably separated. There is no evidence to show the ADRB made its decision or even considered the request based on his mental status.
16. He was furnished new separation documents to reflect his upgraded discharge.
17. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, an undesirable discharge was considered appropriate at the time.
18. Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests his discharge be upgraded.
2. He contends that his diagnosis of paranoid schizophrenia could have attributed to his actions while in the Army. However, no evidence shows he was diagnosed with a mental condition prior to his discharge in 1977. No evidence shows he was having mental problems in 1977 that interfered with his ability to perform his military duties or that this was the underlying cause for the misconduct that led to his discharge.
3. He submitted a request to the ADRB for a discharge upgrade which was partially granted. However, the ADRB found no grounds to approve his request for an honorable discharge. His character of service is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service. Therefore, he is not entitled to an honorable discharge.
4. The type of discharge directed by the ADRB has been deemed appropriate considering all the facts of the case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ____X____ ___X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
____________X_____________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20110019985
5
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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